Va. C. v. Donald C.

• Decision Date: 20 February 2014
• Citation: 980 N.Y.S.2d 597,2014 N.Y. Slip Op. 01218,114 A.D.3d 1032
• Parties: In the Matter of VIRGINIA C., Respondent, v. DONALD C., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant. (And Six Other Related Proceedings.).
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1032

980 N.Y.S.2d 597

2014 N.Y. Slip Op. 01218

In the Matter of VIRGINIA C., Respondent,

v. DONALD C., Appellant.Lisa K. Miller, as Attorney for the Children, Appellant.(And Six Other Related Proceedings.).

Supreme Court, Appellate Division, Third Department, New York.

Feb. 20, 2014.

Diane V. Bruns, Ithaca, for appellant.

Lisa K. Miller, McGraw, attorney for the children, appellant.

Randolph V. Kruman, Cortland, for respondent.

Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.

PETERS, P.J.

Appeal from an order of the Supreme Court (Campbell, J.), entered May 3, 2012 in Cortland County, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of Alexander C. (born in 2003) and Andrew C. (born in 2007). In August 2010, the parties stipulated to an order granting them joint legal and physical custody of the children, with physical custody alternating weekly and the mother having final decision-making authority. Over the next six months, a flurry of violation and family offense petitions were filed by the parties and each commenced a proceeding seeking sole custody of the children. Following a fact-finding hearing conducted over the course of several days, as well as two Lincoln hearings with Alexander, Supreme Court granted the mother sole legal and physical custody and provided alternate weekend visitation to the father. Both the father and the attorney for the children appeal.

As a preliminary matter, this appeal has not been rendered moot by a subsequent Family Court order resolving a violation petition filed by the father. That order, which was entered on consent, made minor changes to the visitation schedule, but otherwise left intact the provisions of the order on appeal relating to custody. As such, we find no basis to conclude that the father relinquished his right to pursue this appeal ( see Hughes v. Gallup–Hughes, 90 A.D.3d 1087, 1088, 935 N.Y.S.2d 149 [2011];Matter of Wayman v. Ramos, 88 A.D.3d 1237, 1238, 932 N.Y.S.2d 199 [2011],lv. dismissed18 N.Y.3d 868, 938 N.Y.S.2d 850, 962 N.E.2d 274 [2012];Matter of Claflin v. Giamporcaro, 75 A.D.3d 778, 779, 904 N.Y.S.2d 580 [2010],lv. denied15 N.Y.3d 710, 2010 WL 4008326 [2010];Matter of Siler v. Wright, 64 A.D.3d 926, 927–928, 882 N.Y.S.2d 574 [2009] ).

Addressing the merits, an existing custody order may be modified upon a showing that there has been a change in circumstances reflecting a real need for change so as to insure the continued best interests of the children ( see Matter of Breitenstein v. Stone, 112 A.D.3d 1157, 1157, 977 N.Y.S.2d 785 [2013];Matter of Deyo v. Bagnato, 107 A.D.3d 1317, 1318, 968 N.Y.S.2d 229 [2013],lv. denied22 N.Y.3d 851, 2013 WL 5567914 [2013] ). Here, the record overwhelmingly establishes that the parents are unable to cooperate or effectively communicate with one another for the sake of their children. They have disagreed on nearly every significant aspect of the children's lives and their relationship has deteriorated to the point that they are hostile, embattled and mistrustful of one another, which has resulted in frequent police intervention. Further, testimony established that the weekly change of custody was causing Alexander anxiety and was otherwise negatively impacting the children. Given these circumstances, Supreme Court properly concluded that joint custody is not a viable option for these parents ( see Matter of Youngs v. Olsen, 106 A.D.3d 1161, 1163, 966 N.Y.S.2d 235 [2013];Matter of Greene v. Robarge, 104 A.D.3d 1073, 1075, 962 N.Y.S.2d 470 [2013];Matter of Coley v. Sylva, 95 A.D.3d 1461, 1461–1462, 944 N.Y.S.2d 356 [2012] ).

Our analysis thus turns to what custodial arrangement would promote the children's best interests. “Relevant factors to be weighed include maintaining stability in the children's lives, the quality of respective home environments, the length of time the present custody arrangement has been in place, each parent's past performance, relative fitness and ability to provide for and guide the children's intellectual and emotional development, and the effect the award of custody to one parent would have on the children's relationship with the other parent” ( Nolan v. Nolan, 104 A.D.3d 1102, 1104, 962 N.Y.S.2d 453 [2013] [internal quotation marks and citations omitted]; see Matter of Clouse v. Clouse, 110 A.D.3d 1181, 1183, 973 N.Y.S.2d 409 [2013],lv. denied22 N.Y.3d 858, 2014 WL 112404 [Jan. 9, 2014] ). We defer to Supreme Court's factual findings and credibility assessments and will not disturb its custody determination where it is supported by a sound and substantial basis in the record ( see Matter of King v. Barnes, 100 A.D.3d 1209, 1210, 954 N.Y.S.2d 272 [2012];Helm v. Helm, 92 A.D.3d 1164, 1166, 939 N.Y.S.2d 592 [2012];Matter of Williams v. Williams, 66 A.D.3d 1149, 1151, 887 N.Y.S.2d 350 [2009] ).

As the record reveals and Supreme Court aptly observed in its lengthy decision, both the mother and the father are caring and concerned parents, each with demonstrated strengths and weaknesses. At the time of the hearing, the mother had recently lost her job due to violation of her employer's Internet usage policy. She acknowledged that she has difficulty controlling her temper and testified that both she and the father inappropriately used corporal punishment in disciplining the children in the past. Although the father made multiple allegations that such improper corporal punishment has continued in the mother's home and commenced a child protective investigation when he found bruises on Andrew's legs, these allegations were deemed unfounded by Child Protective Services, and Supreme Court found that neither party continues to use any sort of inappropriate corporal punishment. The mother has a history of calling the police to investigate somewhat innocuous and explainable injuries on the boys, such as scratches resulting from pets, and appears to be unaware of the negative impact that this may have upon the children. Further, the mother exercised questionable judgment when, despite staying at a domestic violence safe house with the children following the parties' most recent separation, she continued to communicate with and see the father—and even engaged in sexual activities with him—but would not allow him to see the children.

On the other hand, Supreme Court found that it was the mother alone who took a proactive role in the children's medical care and mental health needs, whereas the father was hesitant, or even averse, to engaging in services. Shortly after the commencement of the joint custody arrangement, the mother initiated counseling for Alexander because he was exhibiting problems in school, acting out aggressively and had expressed suicidal ideations. While the mother was supportive of the therapy and followed through with the treatment recommendations, the father disapproved of both the counselor and “the process” in general. As a result, the child missed appointments...